0120150750
01-09-2018
Bella S.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bella S.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120150750
Hearing No. 100-2003-08442X
Agency No. 8966598005
DISMISSAL
On November 25, 2014, Complainant filed a Motion for Award of Attorney's Fees and Complainant's Brief in Support of Appeal. For the reasons stated below, this matter is DISMISSED.
ISSUE PRESENTED
Whether Complainant's motion for additional attorney's fees and costs was erroneously filed with the Commission.
BACKGROUND
This matter has a long and complicated procedural history. Consequently, we will only state those facts that are pertinent to resolving this matter. Complainant is a Special Agent (SA), GS-13, with the Drug Enforcement Agency (DEA). She, as the Class Representative, filed a formal class complaint on March 17, 1993, alleging that the Agency discriminated against her and similarly situated females on the basis of sex (female) when it denied female SAs foreign assignments and promotions to supervisory positions. Additionally, Complainant alleged that the Agency's actions constituted a pattern and practice of unlawful discrimination against female SAs in selections for foreign assignments and promotions to the grades 14 and above.
On April 27, 2011, after a nine-day hearing, an EEOC Administrative Judge (AJ) issued a decision, titled "Class Action Interim Hearing Decision," finding liability against the Agency. On October 7, 2011, the Agency filed a motion to decertify the class. On January 12, 2012, the AJ denied the Agency's motion and issued a report of findings and recommendations. The report included the AJ's previously issued finding of liability, and also included the recommended remedies to make Complainant whole. On March 13, 2012, the Agency issued a final decision rejecting the findings and recommendations of the AJ. Complainant filed an appeal with the Commission.
In EEOC Appeal No. 0120122033 (Jun. 7, 2013), the Commission reversed the Agency's decision. Among other remedies, the Agency was directed to process any additional requests for attorney's fees associated with the appeal. Subsequently, the Agency filed a request for reconsideration. In EEOC Request No. 0520130561 (Aug. 12, 2014), the Commission denied the Agency's request. Additionally, the Agency was directed to process any additional request for attorney's fees associated with EEOC Appeal No. 0120122033 and EEOC Request No. 0520130561.
In her November 25, 2014 motion, Complainant maintains that the Agency has not complied with the Commission's orders that it process her attorney's fees associated with EEOC Appeal No. 0120122033 (Jun. 7, 2013) and EEOC Request No. 0520130561 (Aug. 12, 2014). According to Complainant, she submitted a request for additional fees in the amount of $462,038.75 and costs in the amount of $979.76, for a total of $463,018.51 for work performed from January 12, 2012 to September 11, 2014.
In response, the Agency, among other matters, maintains that the issue of additional attorney's fees that was set forth in Complainant's motion is already pending before an Administrative Judge, since October 10, 2014, as part of the proposed Case Management Plan for Phase II of the class complaint.2
ANALYSIS AND FINDINGS
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 11 � VI.G (Aug. 5, 2015) provides that:
When the decision-making authority, that is, the agency, an Administrative Judge, or the Commission, issues a decision finding discrimination, the decision normally should provide, under the standards set forth above, for the complainant's entitlement to attorney's fees and costs. The complainant's attorney then must submit a verified statement of attorney's fees (including expert witness fees) and other costs, as appropriate, to the agency or Administrative Judge within thirty (30) days of receipt of the decision and must submit a copy of the statement to the agency. 29 C.F.R. � 1614.501(e)(2)(i).
Id. at 11-17.
Both Complainant and the Agency acknowledge that litigation involving this case is currently pending before an Equal Employment Opportunity Commission Administrative Judge regarding the establishment of a Case Management Plan for Phase II of the class complaint. According to the Agency, Complainant has already requested that the Administrative Judge address the issue of additional attorney's fees associated with work performed in EEOC Appeal No. 0120122033 (Jun. 7, 2013) and EEOC Request No. 0520130561 (Aug. 12, 2014). Because this matter is currently before an Administrative Judge, we find Complainant's Motion to be premature and it will be DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. signature
Carlton M. Hadden, Director
Office of Federal Operations
___1/9/18_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 There is no dispute that the Agency paid $883,628.75 to Complainant's current counsel in compliance with our two decisions.
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